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Original Post (9/19/05)

by TChris

Dennis Kozlowski, who came to exemplify corporate greed as the CEO of Tyco, was sentenced today to 8 1/3 to 25 years in prison. Tyco’s CFO, Mark H. Swartz, received the same sentence. Kozlowski was also ordered to pay $97 million in restitution and $70 million in fines.

Some have argued that corporate criminals are undeserving of harsh sentences and that the trend to impose long sentences is an overreaction to the corporate scandals that emerged in recent years. If that is true, it is also true that drug dealers are undeserving of their (usually) much more severe sentences, also imposed as an overreaction to a perceived crisis for at least the last quarter century.

Jonathan Simon, a professor of law at the University of California, Berkeley, said: "The most obvious comparison for the emerging attitude toward white-collar criminals is the harsh punishment we give to people involved in the drug trade. But both represent increasingly irrational and inhumane levels of punishment."

Lengthy sentences are necessary in some cases to protect society from incorrigibly violent offenders. But do they serve to deter corporate malfeasance? Draconian sentences certainly haven’t prevented the peddling of illicit drugs.

Prof. Simon argues that white collar criminals are more responsive to the threat of imprisonment than are drug dealers.

"Deterrence is, in my view, highly contextual," he said. "If you live in a community where young people die all the time from stray bullets - whether they are gang-banging or going to school - it is pretty hard to deter anyone with threats of punishment.

"In contrast, white-collar workers are extraordinarily sensitive to threats since their whole socialization and environment encourage calculation of future benefit and cost."

Perhaps, but does the threat of 25 years provide greater deterrence than the threat of 5 years to an individual who can’t envision spending even a month behind bars?

Mr. Simon suggested that "it would be far more effective to impose a lot of short sentences on a wider group of offenders rather than the example model of harshly punishing a few celebrity cases while most potential offenders know that they are unlikely ever to be caught and punished."